Keng'anya Enterprises Ltd vs East African Gold Mines Ltd (EAGM) (Civil Case No. 298 of 1997) [1999] TZHC 70 (4 November 1999)

IN THE HIGH COURT OF TANZANIA AT DAR ES SALAAM CIVIL CAS]i; __ N o. 298/129] KB'NG*ANYA ENTERPRISES LT_D ••••••••••••••• PLAINTIFF VLd.SUS EAST AFRICAN GOLD MINES_b'.IQ_t~l.Q.l,".!) ••••• .-. 'DEFENDANT RULING SUBJECT! Appli.cation for leave to deliver int2rrcgatories 1 to the plaintiffs,,, • Upon the ·plaintiffs, .... KENG'.:ANYA ENTERPRISES LTL,. as represented by the learned Counsel Mr El-Maamry, suing the defendatits - THE EAST AFRICAN GOLD MINES LTD r herein represented by MKONO & Advocates, the latter in reaction, filed a ,vri tten statement of defence, as expected . . ma;ny .-- proceduraly, however, subsequently after/ months of quiet, by way by affidavit by of chamber summons, as supportedjMuniko Mwita, the 'defendants are applying for leave, to deliver interrogatories, to be answered by the plaintiffs, and this being done under ORDER XI Rules (1) and (2; of the Civil Procedure Code 1966, hence to be called the Code. The suggested interrogatories .range from paras 1.1.; to 1.17, with a pounding monotory on facets of duress like, .. -1- Which plaintiffs representatives, signed the agreements, under duress? -2- Which person or persons· allegafilly, subjected you to duress? -3- Where did the alleged, duress take place? -- When did the alleged, duress take· place -5- What was the nature of the duress, -6- \rvbat was the effect, of the ·a11ged duress -7- Was the alleged duress implied, or explieit? If ehrpress,

• 2 C -8- What was done to you, which you .allege op&rated as duress -9- Who made statements, or took actions you allege operatE.r.\ as duress. -10- Where were these s-:.atements made; or those actions ta:en, which you allege operated as duress -11- etc. What, I have produced bove is more, than a sample, to de~~nst- trate the type·, and quality of interrogato:.'."'.ies, seriously intended by the d·ef endants Counsel, In a counter-affidavit, Mr El-Maamry, resisted the application, both in such Counter affidavit and submisstons, that there was no ambiguity in so far as duress was concered, and, that the defendants ·· 'Ving ably filed their defencE= :.m the 1/3/1998, the interrogatories; w 1 ving been filed on 13/10/98, seven months later, theywere just after thoughts • He maintaned tqat, what the defenda..'1ts wanted, was for cross-examination to clear.. Mr El-Maamry maintained, further, that the plaint vide paras 11 ·, 12, 13, de it clear, that one Dr Chris, the defendants director, and one J3en.arri Kabonde, were involved in the preparations of agreements ad, that such officers, could help the defendants, instead of fishi,pg evidence from the plaintiffs,. It seems, that Dr Mwaikusa~. wae not condescending at all.. He submit-. ted, that the defendants were entitled to have clarity on the matters, to make the preparation of t1\eir case easy, as the defendants, had potential witnesses, in ano outside the Country, and that the right ccmmunica1;;ion, was essential. He added, that, several agreements were :ing referred to}' in th.E:J plaint, and that it was important, that -he de.fepdts knew whi~ agreement, vias the target. The facts leading lo this application, are covering for our p11rposes, a narrow compass. The· are as follow~~ The plaintiffs, being the owners of mineral prespecting licence Na.303/95, in Nyaligem~ area, were in 1994, approached by the defendants Directors ·:... ie .( 1) Geof.f Stewart, -2- C-olin Coxonand -3- Cbristopher William Giles, d need t· · · t f t - t . an conv/ ne said plain i fs, o get in o a jc.int venture,_ for future production of gold, and although the plaintiff was issued with a prespecting licenc~ on the 5/5/1995, it is cl 9imed, that Director Golin Coxon, took the same, purporting to be keeping it, in safe custodya

• 3 • ·And subsequently Direc-oor Dr Chris, visited the plaintiff~, and subsequently hence, through the State Attorney, Mr Bernard Kabonde, the plaintiffs signed two agreements, The Agreements seem _to be two, one dated 24/5/1995, and another dated 21/9/1995 Annextures, SHE 2 and SHE 3. It is these agreemei:,ts, that provoked the filing of the suit, alleging duress, a:nd _subsequently, this application, for delivery of interrogatories. We 8:re now· dutifully, entering into the arenar of the applicabi- lity of the provisions, on interrogatories~ OJ-<.DER XI Rules (1) and (2) 1 llllder which the application is made. In my view, the mission of _Q[illEf:l XI RuJ._g_s __ _l1) and ( J. . of thP Civil Procedure Code 1966, here- at'ter to be called the Ca:3, i:f need be, is that every party, to a suit is entitled to l{now, the nature of his openents case, consequently the party served, with at.ceptable interrogatories, has to answer the same. However, Ishall be fast tc add, a qualification, that -1- first, the said interrogatories .;:;erved must relate to a matter in question, '-?etween the parties and must be necessary, either, -(a) for dispo.sing . fairly, of the cause or matter! 0r for sa-ving costs, they must not relate to the evidence the recipient is intending to cal\ or merely as to the credit of potential ·witness. It is trite knowledge, that this <-1re-a is an equitable remf''.1.Y, a.rid as uch, it cannot be allowed, as of right, the court has discretion, and the court can make orders, as · are appropriate to prevent the same being used oppresively. It is for ,:-.he applicant to satisfy the Court, ·ch at interrogatories. order, is necessary - see DOLLING - BAKER.VS MEH.RcTT (1990) 1 W.L .. R.125. Second, the Court,will not allow interrogatories, which are prolf'ix or interrogatories, which the respondent could answer, only by consulting a expert, or repeating his opinion - see ROFEE VS KEVGFK;EAN ·'._.,936)2 ALLE.R. 1334 Third interrogatories may be rendered, unnece.s- :),Y or disallowed, if there other less onerous means, to answer the -3a112. Fouth, the Court will not compel a party to display his 1 ···:.rinning card", if, perhaps for reasons of delicacy, he choeses not ·i:.o rely on them, at any stage of the proceeding, - ge AIR CANADA ?§.. SECRETARY,,_OF STATE FOR TH.ADE (1983) 2 AC 394, obiter and see DERBY & COe VS.!--j'IELDON (No 7)(12.Ql..1.. Wol.Ro·1J2.? at P.1178E·; Fifth the party is not entitled, to know the facts which counstitut~ exclusively, the evidence of his adversary,- the re2son being that, a such a course, would enable an unscruputous party, to temper with his openents witnesses, manufacture evidence in contradiction, and shape and vrould his case, to defe_at, or prejudice justice. · There must be therefore, belimits imposed, on the use of interrogatories, A commentary on this matter, .• . _ _ _ . . :- by SAHA - THE CODE OF CIVIL I)ROCEDURE 5th Ed. Vol .1 page 1080, would be of ---------,'--"-------- ' assistance. I runs as follows:~ 1 I j

• "There are however limits, to the utilisation ~f the power, ~o ord0: interrogatories to be answered. Those l.:: '!1:;_ ts are ~ set by rules· of relevancy, by the riE·and of decency, and propriety, by even a wider basic requirement of fair play, Justice md eqity. For example, al though 1 one of the ob,ects of interrogatories, is to ascertain an advi::arys case, yet, they cannot be us-::d 9 by a pa:1·i.:y me:r-ely to obtain a disclosur p,?:(ore hand;_ c·f eviden·ce suppJrting the advcaarays· case, as 'this would give one party', an unfair adva11i.,age over the other••••••••••••• • o •• o d • •••• ., • • • • • • The .l"ight to serve interroga• tori es' and t.[L; power to order interrogatories' to be f',?rved, should be used with caution. The interrogator.1.2s, should be confined to. the matters,· that are in issue 1 or sufficiently ma_terial, · at at a particular stage of action, at which interrogatoriesp sought to be delivered. The ·9ower to allow interrogatories, to be adm1nistered by one pdrty·to a..other, is always subject to the discretion of the court." The above conrrncntary 1 is an ORDER Xl Rules (1) and (2) of .the Indian Civil Procedure, which is in primateria, with our ORDER XJ. Rules 1, a..d 2 of the Code, aid there is no excaping from the truth, that such cammentories, or even constructions, are heavily persuasive to us, leave alone, the respect they rightly deserve. Applying the above to the issue at ha.nd, and considering the 8plicants proposed interrogatories, I wu1der whether, the applicants mission is not ·to seek the defence through interrogatories. First, seven months l:apse after the filing of the written statement, of a defence demonstrates, shows, how unmaterial the so called· i:n_terroga- tmries are to the defendants, if not also being used as a delaying weapon, a murderous weapon to equity, and unaceeptable, What·duress eans, and what its effeets are, fall more in an area of law an pro(f than interrogatories. That if) duress is the rule making-contracts· voidable, if procured by duress,and it is in my view derived. from the ~ommon law, the doctrincof undue influence,\ equitable i . · origin, and if there is no special fiduciary relationship; between the parties, •. &IQ

,-=--•· -~ -- - ...._ :• Ill ... ,HI ,· -- f ·1311- ;. ... ·----, 3$ 6 , t • _ ... ' - . ·if •. i::: . ,, . the the existence of undue influence, must be proved as a fact, and defendants, to demand that the plaintiffs prove the same for them., is to demand too muoo,- which i.s -...,nacceptable. Second 9 consi:.. dering, that .the plaintiff, in la1: h;:i.s the burden of proof, I am uneasy, as to why the applicants wa::--c, to cross the bridge, before even approaching_ it, benovelaritly workj ng ·fot the plaintiffs, It is not forgotten that it is noted.t that the appJ..i<?arits arc seeldng, -1- the names of represcntati ves of the pl air.tiffs 1 who aliegedly signed under duress 1 -2- which persons allegedlv committed duress, -3- when and where the sa1e took place, -_4- the nature of duress, -5- how a duress operated on the plaintiffs mind.s i: -c. With great respect I have above pointed out, that 0uress is_an area of la and cannot possibly be a subject of d.i.scovery by - way. of in_terrogatories, all the defenants need_, is to refresh ·their minds on what, in law amounts to duress, arid prepare how to disprove it, if established. And what is more, the· questions on and -=•1ating to the same, are plolific, repetitive, as to be unecceptabJ.y enorous» Fourth, the_desclosure of names of. who did what, where, and how many times, may in my view - not be wise, for the plaintiffs to disclose names wanted,for fear , of interference with them, but m·ore relevantly here is the fact, that the plaint has disclosed possible, or 1:)".)tential witnesses, for the defendants, as State Attorney Bernarci Kibonde, Dr Chris, Geoff stuart 7 Golin Coxon and Christopher Wi1liam GiJs, a substantial listr and a vast potential source of relevant j_n-formation, and to rieed more, this time from the plaintiffs side, is a demand for spoon feeding by the defendants, which this Court cannot allow. And without prejucFi:. cross-examination, genere1ll7 regarded 9 as one of the most efficat;c-...1s: tests, which lead to discovery of truth, and this adversarial weapo1 . . ,vielded to ad vantage, any skiJful cross-examiner t would not consider disccvery by interrogatories of areas sought,· as an essential substi-· tute, In the circumstances therefore, and for reasons above, I wou: ., use my discretion 1 in disallowing _the applicatjJn, which is, basicp· . .'.; on an indiscriminate fishing exp en di tion even/ sl ar shallow waters, The application is, rejected with costs. Delivered this .! .. day of November, 1999. , ~ ., ' ,. \ \ _.___ ,_ .. ,,., _;,~, ... \•• .. -, T\ •-- - -,. l . \ '\ B o W • KA TI TI JUDGE

4/11/1999